Filibusters

by Kim Weissman, Congess Action

In the battle over judicial nominees, the nation has focused on the wrong issue. We have been absorbed by Senate process, and we have ignored the danger to self-government posed by a judiciary operating without any constitutional constraints to its authority. The issue is far larger than specific court rulings with which a majority of people disagree; an independent judiciary is often the only barrier against a tyranny of the majority, and it serves a vital function in that role. But while it is important for courts to be independent of transient popular passions (which, all too often, they are not), serious constitutional problems arise when courts are beyond any effective control by the people or the other branches of government. Thomas Jefferson recognized this constitutional flaw early: “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.”

Our Constitution established a federal government composed of three equal branches – legislative, executive, and judicial – all of which are supposed to be subject to checks and balances. James Madison observed, “If men were angels, no government would be necessary.” But governments are composed of imperfect human beings who make errors, which we can define as acting in a manner contrary to the rules by which our government was constituted; that is, acting unconstitutionally. How are such errors corrected? Jefferson wrote, “When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.” They can be voted out of office at the next election. But what if the judicial branch commits error? Jefferson: “Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.” Judges “are in office for life and not responsible, as the other functionaries are, to the elective control” – they are not subject to re-election. Judges will say that errors of individual courts can be appealed to higher courts to be corrected, but that is useful only up to a point. The ultimate higher court is the United States Supreme Court. Is the Supreme Court composed of demi-gods incapable of error? Of course not. They are human, thus imperfect, and are subject to the same foibles and errors as everyone else. Our Constitution was intended to be easily understood, but there have always been legitimate disagreements about its meaning. Who decides which is correct? As things now stand, the judiciary claims for itself the role of ultimate arbiter; we have come to the anomalous condition in which the judiciary tells us, in essence, that they are incapable of acting unconstitutionally, because the Constitution means whatever they say it means, regardless of what the legislature, the executive, or the people themselves, may believe (they can’t break the rules because they define the rules); but James Madison, in Federalist #10, said, “No man is allowed to be a judge in his own cause.…” Madison, the main architect of our plan of government, did not accept the concept of judicial supremacy: “I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another.…” Jefferson thought likewise: “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.” Further, Jefferson wrote, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed.…”

Thus we come to the heart of the matter. The courts have so expanded their reach that they now claim to be the ultimate decision-makers in every facet of our existence. It is difficult to think of any aspect of human life, from the most public to the most private, in which courts have conceded they have no authority to act. But our federal government was created as one of delegated and limited powers, and such an all-encompassing reach was never intended for any branch of the government. The Tenth Amendment in the Bill of Rights says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Originalist judges on the courts may, over time, shrink the judiciary’s universal reach back to within its constitutional limits; but will not return us to the proper balance in which the people, not the courts, hold the ultimate power in society. Jefferson said: “I know no safe depository of the ultimate powers of the society but the people themselves.…. This is the true corrective of abuses of constitutional power.” But the Constitution provides no easy means by which “the people themselves” can exert their legitimate authority to correct “abuses of constitutional power” by the judicial branch. To return to that proper balance we may need to amend the Constitution, or perhaps take Jefferson’s further advice, and take the extraordinary step of calling for a new constitutional convention: “The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States.”

But there is another major problem with any discussion of judicial accountability. There was a time in our nation when, in the course of a discussion about the constitutional role of our courts, one might speak or write about the judicial system in general, or criticize a specific judge or ruling, and feel secure in the knowledge that as a free citizen of the freest nation on earth, he is entitled to voice an opinion. But if one does so today, one might find oneself accused of inciting criminals to commit violence against judges. Just ask Tom DeLay. And if one is a mere private citizen, one might even find oneself being prosecuted for making threats. There are some topics that our dominant “liberal” culture has declared completely off-limits for reasoned debate; and if one asserts that courts or judges act unconstitutionally, upon whom can one depend to uphold the Bill of Rights?

The Senate Deal

After getting over their initial anger at a deal that allows an “illegitimate” president (yes, they’re still singing that tune) to place a small handful of “extremist” judges (those who think the Constitution actually means what it says) on federal appeals courts, the far left is positively giddy at their stunning victory. In contrast, The Deal has made conservatives hopping mad at the Republicans, believing that it proves once again (as Thomas Sowell put it) that Democrats understand they “are in Washington to represent the people who voted for them”, but Republicans “think that they are in Washington to make deals with Democrats”. And, we can add, to garner praise from media editorial boards for being “reasonable” – defined as ignoring their constituents and abandoning their principles. There are two things certain about The Deal: (1) Democrats won’t filibuster judges unless they decide to filibuster judges; and (2) control of the Senate is out of the hands of 45 minority Democrats and now in the hands of 14 ultra-minority “moderates.”

It also appears that the dominant voice of that group of 14 now resides with one man – John McCain. The Deal allows that future “nominees should only be filibustered under extraordinary circumstances”, and McCain was clear what that means: “It’s up to us, the 14 to decide what’s extraordinary circumstances.” Sure, McCain leaves a place at the table for the rest of the 14 (and notice – nobody else); but when the next judicial filibuster begins, to whom do you think the media will run, to pass judgment on the event? It will be “straight-talk” John McCain, who will offer his Olympian opinion on whether the filibuster meets the “extraordinary circumstances” test. Perhaps McCain thinks this power-broker status will put him in solid for the 2008 Republican presidential nomination; and who knows, with the public’s short attention span and three years of media spin, it just might.

But the worst thing about The Deal – and of this there is no doubt – is the naked grab for power by the Senate, the attempt to re-write Article II, §2 of the Constitution and limit the delegated authority of the President to make judicial appointments. There is no doubt about this power grab because the very day after The Deal was struck, Senator Charles Schumer revealed that design. In claiming to interpret the “advice” portion of “Advice and Consent”, The Deal says, “We encourage the executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.” Right on cue, Schumer took to the Senate floor, and apparently taking the word “encourage” to really mean “require,” demanded that the President “must consult with the Senate in advance of nominating appellate judges.”

Prior approval of nominees by the Senate was rejected in Federalist # 76 by Alexander Hamilton, in which the president’s nomination power was examined. The Founders decided that “…one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.” Hamilton wrote that if a “select assembly” (such as the Senate) chose the nominees, the process would be subject to partisan passions (“a full display of all the private and party likings and dislikes”), and thus “…the intrinsic merit of the candidate will be too often out of sight.” Hamilton also foresaw the sort of “horse-trading” we saw with the Senate deal: “Give us the man we wish for this office, and you shall have the one you wish for that”; and he wrote “…it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.” Thus, Hamilton wrote, “In the act of nomination, [the President’s] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.”

In Federalist #77, Hamilton argued against prior consultation with any sort of advisory body (such as the Senate Judiciary Committee): “Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. … Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive.”

It bears noting that in both Federalist #76 and Federalist #77, Hamilton expected that nominations would be acted upon by the whole Senate: the President “was bound to submit the propriety of his choice to…an entire branch of the legislature” (#76); “there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature” (#77). It was not anticipated that nominees could be obstructed by a small fraction of that branch of the legislature – neither by a Judiciary Committee, nor by a minority that could block the entire branch through a filibuster, and certainly not through a back-room deal concocted by a mere 14% of the whole Senate.

The Senate deal is an attempt by a faction of 14 Senators to alter the balance of power between the Executive and Legislative branches, attempting to insert themselves into the President’s constitutional authority to decide who to nominate, which goes far beyond their constitutionally assigned role of approving or disapproving nominations after they are made. It remains to be seen whether President Bush will countenance this Senate attempt to diminish his constitutional authority, and to upset our system of checks and balances. Incremental step by step, we lose our ability to govern ourselves when we fail to understand that all of our federal government “functionaries” (Jefferson’s word), including our courts, derive all of their legitimate power and authority from a document which begins “We the People.”